Relist (and hold) watch

Posted Tue, April 24th, 2012 11:54 am by John Elwood

John Elwood reviews Monday’s relisted and held cases.

Happy Belated Earth Day, everybody! I don’t know how you marked the occasion, but I got a little carried away with organic gin at a tree-planting and wound up buying so many super-efficient LED light bulbs and locally made artisanal bulbs I couldn’t even cart them all home in my GMC Denali – which, a bit ironically, runs on baby seals I have delivered by air freight. But anyhoo, even the Court got into the act, releasing yesterday’s order list using a new low-impact PDF that uses twenty-two percent fewer electrons than a conventional PDF.* So without any more contrived yammerings, let’s see what news it brought on the relist and hold front.

We begin, as always, by examining the fate of our previous relist. Advocates for New York’s entirely just system of rent regulation and its uniformly deserving beneficiaries took a break from writing earnest emails to snarky bloggers so they could mark the Court’s decision to deny cert. in last week’s lone relist, Harmon v. Kimmel, 11-496, without opinion. The case challenged New York’s rent control system as an unconstitutional uncompensated taking. While I expected the Court to deny cert., I was a bit surprised that after calling for a response and relisting, there was no dissent from denial of cert.

It’s slim pickin’s again this week with only one new relist. A federal district court granted habeas relief to the petitioner in Montgomery v. Robinson, Warden, 11-8360, a capital habeas case, based on his Brady challenge alleging the prosecution wrongly withheld a pretrial police report with information damaging to its theory of the case. An en banc Sixth Circuit reversed, holding, eleven to five, that the Ohio Court of Appeals did not unreasonably apply clearly established Supreme Court precedent. In his petition, Montgomery also claims the trial court erred by not striking a juror whom he believes was mentally incompetent and prejudiced against him, who evidently stated that she had a vision in which the defendant’s mitigation expert appeared to her as Satan while she was undergoing electroshock treatment in 1964. It looks to me like the Court has relisted the case to give the Justices time to digest the record, which arrived in mid-April, about a week after the Court called for it. (In a related vein, the Court called for the record Thursday in another capital habeas case that was scheduled for the Friday Conference, Garcia v. California, 11-8371, involving allegations that a victim-impact videotape was unfairly prejudicial; the Court eventually will relist that case when it has had time to review the record, which arrived Monday.)

To go along with our one relist we have one hold, also from the Sixth Circuit: Brown v. Bobby, Warden, 11-807, appears to be on hold for Johnson v. Williams (formerly known as Cavazos v. Williams), 11-465. Both cases concern whether a habeas petitioner’s claim has been “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim. (Regular readers probably noted the absence of the usual plethora of holds for Dorsey v. United States, 11-5683, and Hill v. United States, 11-5721, but according to our earlier postulate, the Dorsey/Hill floodgates are only reliably loosed when the Court has more than three holds in a given week.)

Mercifully, that is all for this week. The Justices will be in Conference again this Friday, which just happens to be Arbor Day, so join me back here next week as we attempt to reduce our carbon footprint by recycling old jokes.

Thanks to Eric White for compiling and drafting this update.

*In the interests of complete accuracy, I should note that I just now made this up.

Issue(s): (1) Whether the en banc Sixth Circuit correctly held that the Ohio courts did not unreasonably apply Brady v. Maryland, 373 U.S. 83 (1963), by concluding that a withheld police report was not material to either Montgomery’s guilt or punishment; and (2) whether the Sixth Circuit properly concluded that the Ohio courts did not unreasonably apply clearly established federal law by rejecting Montgomery’s claim that the trial court abused its discretion by failing to question or remove a juror who said she had seen defendant’s mitigation expert appearing as Satan in a dream while she was undergoing shock treatment.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.